State v. Fisher

[Cite as State v. Fisher, 2016-Ohio-601.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-36
:
v. : Trial Court Case No. 14-CR-470
:
ANDRE FISHER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 19th day of February, 2016.
...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, Post Office Box 137, Germantown, Ohio
45327
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Andre Fisher appeals from his conviction and sentence to three years in
prison for fleeing police in his vehicle, a violation of R.C. 2921.331(B) and a third-degree
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felony if the operation of the vehicle caused a substantial risk of serious physical harm to
persons or property, R.C. 2921.331(C)(5)(a)(ii). Fisher’s counsel has filed a brief under
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), indicating that
the appeal is frivolous and requesting permission to withdraw. By order filed on October
7, 2015, we informed Fisher that the Anders brief had been filed and advised him of his
right to file his own brief and the time limit for doing so. Fisher has not filed anything, and
the time for filing has expired.
The course of proceedings
{¶ 2} Fisher was indicted on July 21, 2014, on the above-stated charge, and a jury
trial was conducted on March 3, 2015. City of Springfield police officer Joseph Robinson
testified that on June 4, 2014, he was on routine patrol when he saw Fisher, whom he
knew, get into a 2002 Saturn SUV. Robinson ran Fisher’s name and learned that there
was an outstanding warrant for him. Robinson knew Fisher was under a driver’s
suspension, and he observed Fisher commit a traffic violation. So at 7:40 p.m., Robinson
pulled Fisher over.
{¶ 3} As Robinson walked up to the vehicle, he recognized Fisher as the driver.
He knew Fisher from previous law enforcement and personal dealings. They both played
darts, and they had run into each other at various clubs and tournaments over the past
three years. Robinson called Fisher by name and told him that he was under arrest. Fisher
replied, “Cool Joey. Hey, let me go ahead and pull the vehicle over.” But he didn’t pull
over. Instead, Fisher sped away, and a lengthy chase ensued that “presented a danger
to the citizens.”
{¶ 4} Officer Robinson described in detail the route that the chase took through
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Springfield, using a series of aerial maps (State’s Exhibits 1 to 13), which, though not
physically admitted as exhibits, were shown to the jury on a television screen. Robinson
followed Fisher with his lights and siren on through numerous residential and commercial
areas at speeds between 40 and 60 miles per hour—well over the posted limits. Fisher
ran stop signs and red lights, weaved his way through traffic at intersections, and almost
struck a police cruiser. He also cut through occupied parking lots.
{¶ 5} Springfield police officer Keith McConnell (22 years of police experience) also
testified. He said that he and his partner were heading toward the location that Officer
Robinson had stopped Fisher when an SUV came around a corner and almost hit them
head-on. McConnell joined the chase, and his description of it is consistent with
Robinson’s description. McConnell did not know who was driving the SUV.
{¶ 6} Springfield police officer Cody Anderson (9 years with the police department)
was involved in the chase too. He testified that during the chase he was preparing to
deploy stop sticks at the intersection of Burnett Road and Sheridan when he saw the
vehicle approaching him head-on. He pulled over, and the SUV passed him. Officer
Anderson saw the driver, whom he identified as Fisher. Anderson also saw a female
passenger and a dog in the back seat.
{¶ 7} Eventually, Fisher passed Sergeant Doug Pergram, who has been with the
Springfield police department for 19 years and has been a sergeant since 2001. Pergram
called off the chase. He testified that he called it off because Fisher’s driving was erratic
and the police knew who he was and had a description of the vehicle and the license
plate. Pergram also saw a pizza driver in a parking lot almost get hit. Pergram said that
he saw a passenger and a pit bull in the back seat of the vehicle, but he could not identify
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the driver.
{¶ 8} There were no other witnesses. The jury returned a guilty verdict and found
that Fisher’s conduct created a substantial risk of serious physical harm to persons or
property.
{¶ 9} At the sentencing hearing on March 12, 2015, the state requested the
maximum sentence, pointing out that Fisher had previously been convicted for failure to
comply for which he was sentenced to two years in prison. The court noted that Fisher
had also served two prison terms for domestic violence. The court said that it had
considered the sentencing factors in R.C. 2921.331(C)(5)(b), the purposes and principles
of sentencing, and the general statutory sentencing factors. The court then imposed the
maximum of 3 years in prison and imposed a mandatory lifetime driver’s license
suspension because of Fisher’s prior conviction for the same offense. Fisher was notified
of the possibility of three years of post-release control.
{¶ 10} Fisher appealed.
Potential assignments of error
{¶ 11} Although appellate counsel found no merit to the appeal, she identifies three
potential assignments of error for us to consider. The first potential error concerns
whether the finding of guilt is supported by sufficient evidence and whether the verdict is
contrary to the manifest weight of the evidence. “A sufficiency of the evidence argument
disputes whether the State has presented adequate evidence on each element of the
offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State
v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v.
Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997).
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{¶ 12} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” Id. at ¶ 12. See Eastley v. Volkman, 132 Ohio St. 3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (saying that “ ‘manifest weight of the
evidence’ refers to a greater amount of credible evidence and relates to persuasion”).
When evaluating whether a conviction is against the manifest weight of the evidence, the
appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in resolving conflicts in
the evidence, the trier of fact “ ‘clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.’ ” Thompkins at
387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 13} Here we agree with counsel that an assignment of error regarding
sufficiency or manifest weight of the evidence would be frivolous. Two police officers
identified Fisher as the driver of the vehicle. Officer Robinson, who knew Fisher, saw him
get into the vehicle. After stopping Fisher, Robinson was within a few feet when he
addressed Fisher by name and Fisher responded using the officer’s nickname. There is
no evidence contradicting the two identifications of Fisher as the driver. Moreover, the
evidence about the lengthy chase, the running of stop signs and traffic lights, and the
weaving through traffic that nearly caused collisions is abundantly sufficient to
demonstrate a risk of serious harm to the point that any argument to the contrary is
frivolous. Likewise, having reviewed all the testimony, we conclude that the weight of the
uncontradicted evidence so clearly establishes the elements of the offense that no
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reasonable argument can be made that the verdict is against the manifest weight. The
first potential assignment of error lacks arguable merit.
{¶ 14} The second potential assignment of error suggests that Fisher was
prejudiced by ineffective assistance of trial counsel. In this regard appellate counsel says
that in opening statements trial counsel indicated that he anticipated being able to show
that Fisher had an alibi, that at the time of the offense he was at his mother’s house in
Columbus, Ohio. But all counsel said in his opening statement is that at the time of the
offense Fisher was with his mother and the mother of his child in Columbus. Counsel
stopped short of saying that either would actually testify. After the State rested, out of the
hearing of the jury, Fisher’s counsel said, “I’ll let the court know my two witnesses I
ascertained were from Columbus are not here. We anticipated that the defendant’s sister
was getting them here today, but they are not here so I don’t have any witnesses to put
on.” (Trial Tr. 125). There was no request for a continuance or further explanation. During
closing, Fisher’s counsel commented, “Andre’s mom wasn’t able to be here.” (Id. at 132)
The record contains no other information about why Fisher’s mother and sister were not
at the trial.
{¶ 15} Assistance of counsel is not ineffective unless and until it is proven that
counsel’s performance fell below an objective standard of reasonable representation and
that counsel’s performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Here, there is simply nothing in the record
to support a non-frivolous argument concerning ineffective assistance of counsel.
Whether the witnesses appeared, why they did not appear, or what their testimony would
have been is unknown. We agree with appellate counsel that an assignment of error
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based on ineffective assistance lacks arguable merit and is frivolous.
{¶ 16} The final potential assignment of error suggested by counsel is a challenge
to the maximum sentence of three years that was imposed. “[A] trial court has full
discretion to impose any sentence within the authorized statutory range, and the court is
not required to make any findings or give its reasons for imposing maximum or more than
minimum sentences.” (Citation omitted.) State v. King, 2013–Ohio–2021, 992 N.E.2d 491,
¶ 45 (2d Dist.). Moreover, a maximum sentence is not contrary to law when it is within the
statutory range and the trial court has considered the statutory principles and purposes
of sentencing as well as the statutory seriousness and recidivism factors. State v. Walker,
2d Dist. Montgomery No. 25741, 2014-Ohio-1287, ¶ 17-19; State v. Hayes, 2d Dist. Clark
No. 2014-CA-27, 2014-Ohio-5362, ¶ 15. Applying these standards, we see no non-
frivolous argument that can be made to challenge Fisher’s maximum sentence of three
years. He had previously been sentenced to prison several times, one of which was for
the very same offense for which he was convicted in this case, and the court considered
the applicable statutory provisions. This potential assignment of error has no arguable
merit.
Anders Review
{¶ 17} We also have performed our duty under Anders to conduct an independent
review of the record. We have thoroughly reviewed the docket, the various filings, the
written transcript of the jury trial, and the sentencing disposition. We have found no non-
frivolous issues for review. Accordingly, the judgment of the Clark County Common Pleas
Court is affirmed.
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FAIN, J., and FROELICH, J., concur.
Copies mailed to:
Ryan A. Saunders
Kirsten Knight
Andre Fisher
Hon. Douglas M. Rastatter